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579 F.

2d 830

Christian, Commissioner of Public Safety, Raymond
Chesterfield and Leon Lenhardt.
No. 77-1363.

United States Court of Appeals,

Third Circuit.
Argued Dec. 7, 1977.
Decided July 5, 1978.

Ive Arlington Swan, Asst. Atty. Gen., Dept. of Law, Charlotte Amalie, St.
Thomas, V. I., for appellant.
Gregory D. Ball, Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ADAMS, ROSENN and HUNTER, Circuit Judges.
JAMES HUNTER, III, Circuit Judge:

This appeal arises from a claim against the Government of the Virgin Islands
and individual defendants for the death of Kent Richards.1 The Government
challenges the award of costs and counsel fees in addition to the maximum
amount of $25,000 damages permitted by the statutory waiver of sovereign
immunity for tort claims. Appellant also argues that the district court erred in
refusing to deduct from the judgment the amount of payments received by
plaintiff from the Criminal Victims' Compensation Commission.

Richards and a friend were walking beside a road near the police station in
Charlotte Amalie, St. Thomas, and were passed by Leon Lenhardt, a police
officer of the Virgin Islands Department of Public Safety. Lenhardt was off

duty and driving his private car. The pedestrians and Lenhardt exchanged some
words, causing Richards to run up to Lenhardt's car. The evidence was in
conflict over whether Richards merely spoke to Lenhardt or whether he
threatened the policeman with his fists. During the altercation Lenhardt, still in
his car, drew his police revolver and shot Richards in the head. Richards died
from the wound. The court found that there was no justification for Lenhardt's
use of deadly force.

Dorothy Richards, wife of the decedent, brought suit against the Government,
alleging that it had negligently entrusted Lenhardt with a firearm when it knew
that he had a propensity for abusing his authority. Plaintiff produced evidence
of several incidents in which Lenhardt allegedly had abused his official
position, demonstrated poor judgment, and misused his revolver. One of the
incidents involved a charge filed by the policeman's wife that he had pointed
his loaded revolver at her and threatened to kill her. A police department
administrative investigation found the charge to be well-founded, but the matter
was dropped when the complaint was withdrawn. A second incident occurred
when Lenhardt allegedly drew his weapon while off duty, pointed it at a
superior officer who was on duty, and threatened to take the superior's life.
Lenhardt was exonerated as to the more serious charge of threatening the
officer's life, but was found guilty of conduct unbecoming an officer. The
district court concluded that this "alleged instance of misconduct, taken
together with other untoward exhibitions by the officer, was certainly enough to
have put the government on notice that there they were dealing with a man
whose fitness for the job of a police officer required to be constantly armed had
been called into question."

The court found the government liable to plaintiff for negligently entrusting a
deadly weapon to Lenhardt. It found support for this theory of liability in the
Restatement (Second) of Agency 219(2)(b) (1958).2 The court assessed
damages at $25,000, the maximum recovery permitted against the Government
of the Virgin Islands by the statutory waiver of sovereign immunity for tort
actions. 33 V.I.C. 3411(c). In addition, the court taxed costs against the
government in the amount of $37 and awarded plaintiff an attorney's fee of
$3,000, See 5 V.I.C. 541. The court also granted plaintiff's motion to award
the judgment as a sum certain, not subject to setoffs or deductions on account of
a payment of $10,000 made to plaintiff under the Virgin Islands Criminal
Victims Compensation Act, 34 V.I.C. 151-177.

The Government of the Virgin Islands does not appeal the finding of liability,
but challenges two aspects of the damage award. First, the government objects
to the award of costs and attorney's fees in addition to a damage award of

$25,000. In a case brought under the general territorial jurisdiction of District

Court of the Virgin Islands,3 costs and counsel fees may not be charged against
the government without an express waiver of sovereign immunity. Cf. Fairmont
Creamery Co. v. Minnesota, 275 U.S. 70, 73-74, 48 S.Ct. 97, 72 L.Ed. 168
(1927) (absent waiver, sovereign immunity bars award of costs against state in
state court action); Skehan v. Board of Trustees, 538 F.2d 53, 58 (3d Cir.) (en
banc), Cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976). The
legislature has provided a general waiver of immunity covering cases such as
plaintiff's in the 1971 Virgin Islands Tort Claims Act, 33 V.I.C. 3408.4 We
have held that this statute also waives immunity from an award of costs and
attorney's fees. Baptiste v. Government of the Virgin Islands, 529 F.2d 100 (3d
Cir. 1976). See also Collins v. Government of the Virgin Islands, 366 F.2d 279,
286 (3d Cir. 1966) (under waiver of immunity by passage of special act), Cert.
denied, 386 U.S. 958, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967).

The legislature, however, has placed a monetary limitation on its waiver of

immunity. Section 3411(c) of title 33 provides:

7 judgment shall be awarded against the Government of the Virgin Islands in

excess of $25,000.

We have previously addressed the question of whether the total award of

damages, costs, and counsel fees may exceed this statutory limit. See Baptiste
v. Government of the Virgin Islands, supra, 529 F.2d at 102-03:

9 only limitation upon the amount of a judgment which can be awarded appears in
33 V.I.C. 3411(c) . . . . That provision argues in favor of the allowance of
attorneys' fees because 5 V.I.C. 543(a), which was in effect for years before
enactment of the Tort Claims Act, provides that: "A bill of costs shall be filed in the
case and, upon allowance, included in the judgment or decree." Thus, reading the
statutory provisions together: attorneys' fees are costs; costs are included in the
judgment; but the total judgment cannot exceed $25,000.00.

Although this observation was dicta in Baptiste, we believe that it correctly

states the reasoning to be applied to this case.5 We therefore hold that the
district court erred in awarding damages, costs and attorney's fees in excess of
$25,000. Such an award exceeds the government's waiver of immunity.


Plaintiff has argued that the analysis in Baptiste is erroneous in light of

F.R.Civ.P. 58, which provides in part that the "(e)ntry of the judgment shall not
be delayed for the taxing of costs." Plaintiff reasons that the word "judgment"
in the Tort Claims Act cannot include costs, including attorney's fees. While

Rule 58 states the appropriate procedure for the entry of judgment and the
taxing of costs in the Virgin Islands, See, Danzig v. Virgin Isle Hotel, Inc., 278
F.2d 580 (3d Cir. 1960), we do not believe that the Rule affects this court's
analysis of the legislature's intent in passing the limited waiver of immunity.
Baptiste interpreted the meaning of the word "judgment" as used in the Virgin
Islands Code. This interpretation is compatible with the operation of Rule 58. If
the damage award against the government is $25,000, the court may not award
plaintiff additional costs or attorney's fees. If the damages are less than the
statutory maximum, the court has discretion to award costs including counsel
fees, and the entry of judgment should not be delayed for the taxing of those

The government's second contention is that the court erred in making the award
of damages a sum certain, not subject to setoffs or deductions. Mrs. Richards
had been awarded $10,000 under the Virgin Islands Criminal Victims
Compensation Act as a result of the death of her husband. The statute requires
that awards be repaid to the government under certain limited circumstances in
which the recipient has received compensation from other sources. One ground
for repayment is when the victim receives a sum from the criminal offender or
"from any person on behalf of the offender." 34 V.I.C. 169. 6 The government
contends that the $25,000 damages award in this case constitutes a payment "on
behalf of" Lenhardt. It therefore seeks to set off against the judgment the
$10,000 compensation award.


Our interpretation of the Compensation Act is guided by legislature's direction

that the statute "shall be liberally construed to effect its purposes." 34 V.I.C.
151. Remedial legislation is traditionally construed broadly, with exceptions
construed narrowly. See Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548,
19 L.Ed.2d 564 (1967); National Automatic Laundry and Cleaning Council v.
Schultz, 143 U.S.App.D.C. 274, 291, 443 F.2d 689, 706 (1971).


Plaintiff argues that the government is not a "person" under section 169, and
thus that payment of damages by the government is not payment "from any
person" under the Act. She points out that the Virgin Islands Code, unless the
context requires otherwise, does not define "person" as including the
government. 1 V.I.C. 41. We do not decide this question, since we hold that
the payment of damages by the government as a result of this suit is not a
payment "on behalf of" Lenhardt. The government was held liable for its own
negligence in entrusting a revolver to a person who it should have known was
unfit to carry a weapon. Payment of the judgment compensates plaintiff for the
government's own negligence and cannot be considered a payment on behalf of
the police officer. See generally Restatement (Second) of Agency 219(2)(b)

& comment E (1958); Restatement (Second) of Torts 303, comments A, d

(1965).7 The district court was therefore correct in denying the government a
setoff of $10,000.

The judgment of the district court will be vacated and the case remanded for
entry of judgment consistent with this opinion.

In a connected appeal, No. 77-1362, plaintiff challenged the summary

judgment entered in favor of defendant Alphonso Christian, the Virgin Islands
Commissioner of Public Safety. By an order filed January 10, 1978, we found
that plaintiff's notice of appeal had not been timely filed. We remanded the
matter so that the district court might consider a motion to extend the time for
filing of the notice of appeal because of excusable neglect, F.R.App.P. 4(a). See
Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084 (3d Cir. 1972) (en banc).
Such a motion was filed in the district court on February 1, 1978. As of the time
of the filing of this opinion, no disposition has been made on this motion
Plaintiff's suit was dismissed below as to defendants Raymond Chesterfield and
Leon Lenhardt.

219. When Master is Liable for Torts of His Servants

(2) A master is not subject to liability for the torts of his servants acting outside
the scope of their employment, unless:
(b) the master was negligent or reckless . . . .
The court also relied on the analogous provision in the Restatement (Second) of
Torts 303 (1965):
303. Acts Intended or Likely so to Affect the Conduct of the Other, a Third
Person, or an Animal as to Involve Unreasonable Risk
An act is negligent if the actor intends it to affect, or realizes or should realize
that it is likely to affect, the conduct of another, a third person, or an animal in
such a manner as to create an unreasonable risk of harm to the other.
(The text of the opinion contains a typographical error which indicates "section
330" of the Restatement. The context of the citation leads us to believe that the
court most likely intended to refer to section 303.)
The Restatements are to be used as the rules of decision in the Virgin Islands,

absent contrary local law or statute. 1 V.I.C. 4; See Skeoch v. Ottley, 377
F.2d 804, 810 (3d Cir. 1967).

Plaintiff's complaint limits its jurisdictional allegation to 5 V.I.C. 76

(wrongful death actions). See 4 V.I.C. 32 (general jurisdictional provision)

Section 3408 provides:

The Government of the Virgin Islands hereby waives its immunity from
liability and action and hereby assumes liability with respect to injury or loss of
property or personal injury or death caused by the negligent or wrongful act or
omission of an employee of the Government of the Virgin Islands while acting
within the scope of his office or employment, under circumstances where the
Government of the Virgin Islands, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred. The Government consents to have this liability determined in
accordance with the same rules of law as applied to actions in the courts of the
Virgin Islands against individuals or corporations; Provided, That the claimant
complies with the provisions of this chapter.

The legislative history of the 1971 Virgin Islands Tort Claims Act is
inconclusive as to whether costs may be awarded in addition to the statutory
maximum judgment of $25,000
The Act was patterned after the Federal Tort Claims Act, 28 U.S.C. 1346,
1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-80 (1970 & Supp. V 1975),
which does not have an analogous limitation on the amount of a judgment.
Also, the federal act, unlike the Virgin Islands statute, contains an explicit
waiver of immunity for costs, not including attorneys fees. Id. 2412.

The statute provides:

Any applicant who has received payments on an award made by the
Commission under this chapter shall pay to the Commission all sums, not to
exceed the amount of such payment, which, after the payment on the award,
have been received by the applicant from the offender, from any person on
behalf of the offender, or from any payments under any insurance policy, other
than a life policy, for the personal injury or death for which the award was
made under this chapter.

The Government has called to our attention only one case in support of its
interpretation of section 169. In Gurley v. Massachusetts, 363 Mass. 595, 296
N.E.2d 477 (1973), the court held that an award under the Massachusetts
Criminal Victim Compensation Act was subject to reduction for welfare

payments received from the Commonwealth. The Massachusetts statute, unlike

the Virgin Islands Act, explicitly provides for a reduction of benefits in the
amount of any payment received from "public funds." Mass.Gen.Laws Ann. ch.
258A, 6. Therefore, we do not believe that Gurley supports the Government's